Antitrust Law Daily Wrap Up, STATE UNFAIR TRADE PRACTICES—D. Conn.: CUTPA claim alleging only medical negligence could not be maintained, (May 29, 2015)

By Michael Menzhuber, J.D., LL.M.

An individual who underwent two failed hip replacement surgeries could not maintain a Connecticut Unfair Trade Practices Act (CUTPA) claim against a hospital because the claims involved only medical negligence or malpractice, according to the federal district court in Bridgeport, Connecticut. The Connecticut Supreme Court has determined that CUTPA does not apply to medical negligence or malpractice but does apply to the entrepreneurial or commercial aspects of the medical profession (LaFountain v. Smith & Nephew, Inc., May 27, 2015, Eginton, W.).

Background. Roxanne LaFountain underwent two failed hip replacement surgeries at St. Vincent’s Medical Center in Bridgeport, Connecticut. The hip replacement surgeries involved parts designed, constructed, manufactured and sold by Smith & Nephew, Inc. (S&N).

LaFountain brought actions against S&N, under the Connecticut Product Liability Act (CLPA), and against the hospital, for corporate negligence and violation of the Connecticut Unfair Trade Practices Act (CUTPA). S&N removed the case, on the basis of diversity jurisdiction and federal question jurisdiction, and LaFountain filed a motion to remand.

The court noted that the removal of the case, on the basis of diversity jurisdiction, presumed that LaFountain fraudulently joined the hospital to the action in order to defeat diversity and that S&N had the burden of showing that there was no possibility that a cause of action could be made against the hospital. S&N argued that neither the corporate negligence claim nor the CUTPA claim against the hospital could be sustained. After determining that LaFountain’s negligence claim against the hospital was barred by the statute of limitations, the court considered whether she could state a CUTPA claim against the hospital.

The court noted that the Connecticut Supreme Court had determined that CUTPA does not apply to claims of medical negligence or malpractice. However, the entrepreneurial and commercial aspects of the medical professional are subject to the statute. Haynes v. Yale-New Haven Hospital, 243 Conn. 17 (1997). S&N argued that LaFountain failed to assert allegations concerning the entrepreneurial or commercial aspects of the medical profession, and the court agreed.

LaFountain’s CUTPA claim alleged that the hospital: (1) resold the R3 metal liners when it knew or should have known of their defective condition; (2) failed to inspect the liners to determine their suitability; (3) failed to take steps to remove the liners from its approved hip replacement products; (4) failed to warn the surgeon of the liner’s defect; and (5) continued to profit from the sale of the liners when it knew they were potentially harmful and a safer alternative existed.

The court determined that these allegations implicated the standard of care for provision of medical services and treatment, rather than the entrepreneurial or commercial aspects akin to billing or business solicitation. Consequently, the court determined that LaFountain could not sustain a CUTPA claim against the hospital.

The case is No. 14cv1598 (WWE).

Attorneys: Jeffrey M. Cooper (Cooper Sevillano, LLC) for Roxanne LaFountain. R. Cornelius Danaher, Jr. (Danaher Lagnese & Neal, PC) for Smith & Nephew Inc. Kaitlin A. Canty (Day Pitney LLP) for St. Vincent's Medical Center.

Companies: Smith & Nephew Inc.; St. Vincent's Medical Center

Cases: StateUnfairTradePractices ConnecticutNews